In its most recent report on nursing home payments and quality, February 2013, the Office of Inspector General (OIG), Department of Health and Human Services (HHS) reports that many skilled nursing facilities (SNFs) failed to provide adequate care planning and discharge planning to residents and provided "egregious" care to some residents, yet were paid by Medicare for these services. According to the OIG, these failures resulted in Medicare overpayments of $5.1 billion in 2009, the most recent year for which data are available.[1]

The OIG's examples of "egregious" care highlighted three areas, two of which are of particular concern to the Center for Medicare Advocacy – antipsychotic drug use and therapy. The third area of egregious care was wound care.

The OIG looked at all Part A stays with dates of service in calendar year 2009. From these stays, it selected a stratified simple random sample of 245 stays. Focusing on stays of 21 days or longer (21 days is the time period for completion of a resident's initial care plan), OIG used a final sample of 190 stays, which it projected to 1,104,692 stays. The sample "included 83 stays in which the beneficiaries were discharged to another setting (e.g., another nursing facility or a hospital) or to the community (e.g., a group home or the beneficiaries' own homes)."[2] Three registered nurses, a physical therapist, an occupational therapist, and a speech therapist reviewed the residents' medical records, using a standardized data collection instrument.

A Word of Caution in Considering the OIG Report

Although the Center for Medicare Advocacy recognizes that Medicare fraud and inappropriate utilization of services are serious concerns, we question whether some of the overutilization identified by OIG is truly inappropriate. Our question is based on the Center's long experience with beneficiaries being denied medically necessary therapy and other care – particularly when those patients have long-term and chronic conditions that will not improve. We are concerned that such medically necessary care is too often swept into studies reporting "overutilization," when our experience demonstrates that many older people and people with disabilities are underserved.

The recent settlement in Jimmo v. Sebelius, makes it absolutely clear that maintenance nursing and therapy can be skilled services, just like care that is needed to improve a patient's condition. As such, they are also equally coverable by Medicare. Thus, medically necessary nursing and therapy needed to help an individual maintain function or to slow the individual’s decline or deterioration are not overutilization and should not be considered automatic indices of fraud or abuse.[3]

Nonetheless, we report the OIG findings below:

Care Planning

The OIG found, "For 26% of stays [accounting for Medicare payments of $3.1 billion] SNFs did not develop care plans that met [all] requirements."[4] Examples included the absence of plans to monitor residents' use of antipsychotic medications, the lack of measurable objectives or detailed timeframes, and the completion of a care plan by a single staff member after a resident left the nursing facility. One reviewer commented that "the records had 'many perfect computer-generated care plans' that were not individualized or customized for the beneficiaries."[5]

Care

"For 15% of stays [at a cost to Medicare of $2.0 billion] SNFs did not provide services in accordance with care plans,"[6] Residents received fewer services than required by their care plans or more services than required by the care plan (e.g., resident received "more therapy than indicated in the plan of care because the amount of therapy that SNFs provide to beneficiaries largely determines the amount that Medicare pays SNFs.") [7] The OIG provided two examples. In one example, "the SNF provided therapy for 12 continuous days without an explanation for the need for that amount of therapy. In another example, the SNF continued providing therapy even though the beneficiary had met all therapy goals."[8]

Discharge planning

The OIG found, "For 31 percent of stays [at a cost to Medicare of $1.9 billion] SNFs did not meet discharge planning requirements."[9] Discharge planning deficiencies included summaries providing "minimum information," such as "'Has done well'" and failure to provide residents with specific information about medications. The Center has extensive materials on appropriate discharge planning for all care settings.[10]

Egregious Care

Antipsychotic Drugs

Medical reviewers "found a number of egregious examples of poor quality care that were related to wound care, medication management, and therapy." Id. 13. Two examples of problems in medication management concerned antipsychotic drugs that were given to residents with dementia.

The OIG's findings are consistent with earlier OIG reports on antipsychotic drugs, including the 2011 report "that 95 percent of claims for atypical antipsychotic drugs for elderly nursing facility residents were for off-label use and/or the condition specified in the [Food and Drug Administration’s] black box warning."[11] The Center has extensive materials on antipsychotic drugs in nursing homes.[12]

Therapy

Medical reviewers identified two examples of SNFs' "provid[ing] inappropriately high levels of therapy to beneficiaries given their condition." Id. 15. In one case, a beneficiary receiving hospice care for terminal lung cancer and bone metastasis received physical therapy five days a week for five weeks. In the second example, a resident with a dislocated hip who was not weight-bearing received the highest level of therapy services for the entire SNF stay.

These findings were consistent with the OIG's November 2012 report, which found that "SNFs billed for a higher payment category than was appropriate for 20 percent of all claims in 2009."[13]

The Center's Concern

Although the Center is aware of SNFs inappropriately billing for therapy services, we are also concerned that SNFs and other health care providers have often denied therapy and nursing care services because of pressure to interpret the Medicare statute as requiring "improvement." The recent Court approval of the settlement in Jimmo v. Sebelius, confirms that maintenance therapy is covered by Medicare when the beneficiary requires the services of a professional therapist to slow or prevent decline or deterioration and to maintain function. Although it is unclear whether any of the OIG's examples of excessive therapy actually reflect an incorrect improvement standard, readers should be aware of these concerns and of the Jimmo settlement – and should consider the OIG findings accordingly[14]

The OIG's Recommendations

The OIG called on CMS to strengthen the regulations on care planning and discharge planning; to provide guidance to SNFs on care planning and discharge planning; to increase surveyor efforts to identify and enforce care planning and discharge planning requirements; and to link payments to meeting quality of care requirements. CMS agreed with all of the OIG's recommendations.